Estudio de la marcada o plan de corte, optimizando el consumo de materiales, con recursos convencionales y/o informáticos.

Overview

Examining the changing legal landscape is an important component of this research for two overarching reasons. First, these changes in the country’s legal framework are very recent, and arguably are the most notable changes to its domestic law concerning migration and non-citizens since the 1934 Settlement Law. Second, the legal changes are occurring at a time in which Turkey occupies a central role as a host country to nearly three million Syrian asylum seekers164, among migrants and asylum seekers from other nationalities. Turkey’s position within the region is pivotal both in terms of its reception of asylum seekers and migrants as well as its political partnership with the EU in addressing the migration flows.

Through examining temporary protection in from its emergence in Europe in 2001 to the development of the Temporary Protection Regulation in Turkey in 2014, I argue that its presence in Turkey is an indicator of the growing trend towards non-entrée regimes and containment policies that the EU enters into with third-countries. Moreover, I assert that the ambiguity often associated with temporary protection can lead to a stratification of rights and political membership between citizens and non-citizens. Further complicating the issue at hand are the recent discussions of extending citizenship to Syrian asylum seekers in Turkey without fully divulging what this process would encompass. This chapter critically examines the recent development of institutions and legal frameworks relating to migration that have taken shape in Turkey since 2013, with the aim of discussing more broadly the implications

164_{Figure is from the UNHCR Syria Regional Refugee Response Portal, updated as of April 27, 2017.} http://data.unhcr.org/syrianrefugees/country.php?id=224

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of such changes on citizenship practices in order to raise the question of whether alternative forms of membership will arise in Turkey. To do so, the chapter first provides an overview of the context in which temporary protection developed in Europe. Second, it discusses the context in which the 2013 Law on Foreigners and International Protection and the 2014 Temporary Protection Regulation emerged in Turkey, and engages in an analysis of the legal changes and their implications.

Context of Temporary Protection – Europe

The year 2001 is marked by events that continue to affect migration movements and the ways in which migration is managed. Against the backdrop of the post 9/11 “War on Terror,” the externalization of border controls, the use of biometric screening and increased surveillance have all had reverberating effects on the ways in which people move. 2001 also marked the formal end of the ethnic conflicts in the former Yugoslavia.165The end of these conflicts gave way to the formation of new states in the region, and consequently, massive displacement within Europe.166It was also during 2001 that the EU decided to introduce the Temporary Protection Directive167 _{in an attempt to deal with this ongoing displacement and} to address the immediate needs of those internally displaced without having to follow the procedures of the Refugee Status Determination (RSD), which were considered to be both back-logged and an overly lengthy process.

Temporary protection, which is often viewed by human rights activists as a “quick fix” to migration and displacement resulting from conflict, is ambiguous in nature. Joan

165_{United Nations International Criminal Tribunal for the Former}

Yugoslavia.http://www.icty.org/en/about/what-former-yugoslavia/conflicts

166 _{European Commission, Migration and Home Affairs: Temporary Protection. http://ec.europa.eu/dgs/home-}

affairs/what-we-do/policies/asylum/temporary-protection/index_en.htm

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Fitzpatrick (2000) in Temporary Protection of Refugees: Elements of a Formalized Regime captures this ambiguity of temporary protection when she writes,

For several decades, temporary protection has hovered at the edges of refugee law, assuming multiple identities and serving various functions. Interest in the formalization of temporary protection has increased in recent years, but this interest stems from an uneasy mix of progressive and retrogressive impulses.168

Although the focus of this thesis is not on refugee law, there are overlaps in how temporary protection became a tool utilized by the state to address the movement and protection of non- citizens with a specific understanding of temporality. That is to say that, the temporariness of the approach, i.e. that permanent re-settlement or granting citizenship was not the approach, was in fact a way to understand or conceptualize what future role or position the non-citizen would encompass in the host society It was during this time period of large-scale migration and displacement at the end of the 1990s and into 2000 that Europe began to formalize temporary protection measures in an attempt to harmonize their migration policies. This attempt at dealing with internal displacement through “burden-sharing” mechanisms is seen as the beginning of formal temporary protection in Europe. 169 Subsequently, temporary protection came into existence with the EU Directive 2001/55/EC, with the specific aim of “harmonizing temporary protection practices across the EU through establishing certain welfare rights for duration of one to three years.” 170Although there is a type of formality associated with temporary protection as a legal regulation, it can be seen as possessing an

168_{Fitzpatrick, J., 2000. “Temporary protection of refugees: elements of a formalized regime.”American Journal}

of International Law: 279-306: 305. Accessed December 9, 2016. doi: 10.1017/S0002930000221143

169_{Thorburn, Joanne.1995. "Transcending boundaries: Temporary protection and burden-sharing in}

Europe." International Journal of Refugee Law 7, no. 3: 459-480: 472. Accessed December 4, 2016. doi: 10.1093/ijrl/7.3.459

170 _{“Temporary Protection.” European Commission, Migration and Home Affairs.}

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ambiguous nature which is that the state administering temporary protection determines the time frame and the type of rights accessible under temporary protection.171

Temporary protection was introduced to address a specific urgent need to ensure that those displaced as a result of the ethnic conflicts in the former Yugoslavia were able to access rights without going through the RSD procedure for three overarching and overlapping reasons: 1. Governments had hoped that the displacement would be temporary and so it was considered unnecessary for individuals to go through RSD procedures. 2. As the institutions overseeing RSD processes were back-logged, it would take years for requests to be processed(for either approved or declined applications)172 3. Temporary measures would mean that the host governments would be required to provide minimal assistance to those displaced from the conflict, who perhaps otherwise might not have qualified for international protection under the 1951 Refugee Convention.173 As such, temporary protection was viewed by some as providing a basic form of international protection for individuals who would have otherwise not met the stricter RSD requirements. For host governments, temporary protection provided a limited and temporally-bound form of protection for individuals.

The introduction of temporary protection measures highlights a shift in how protection and membership in a host community are imagined. The ambiguity and tension arising from state sovereignty and the need for adherence to international laws and norms suggests the purposeful malleability of temporary protection. The vagueness of temporary

171_{When the EU implemented Temporary Protection, Member States developed their own national versions of}

TP which determined the length of time and which specific rights were accessible. Study on the Temporary Protection Directive. European Commission. January 2016. Pg 1https://ec.europa.eu/home- affairs/sites/homeaffairs/files/e-library/documents/policies/asylum/temporary-

protection/docs/executive_summary_evaluation_tpd_en.pdf

172_{Koser, Khalid, and Richard Black. 1999. "Limits to harmonization: The “temporary protection” of refugees in}

the European Union." International Migration 37, no. 3: 521-543: 523. Accessed December 4, 2016. doi: 10.1111/1468-2435.00082

173 _{In the aftermath of ethnic conflicts during the 1990s and into 2001, individuals who migrated either for}

asylum or for reasons due to economic hardship or who were displaced from the conflict often did not meet the narrow definition of the 1951 Convention Relating to the Status of Refugees to receive protection under

international law which required that individuals prove a fear of persecution for reasons stated in Article 1 of the 1951 Convention Relating to the Status of Refugees.

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protection is inherent so as to not “interfere” with the state’s right to sovereignty, while also making sure it is not in violation of universal principles, namely, the principle of non- refoulement.

As discussed in the previous chapter, the issue of labeling becomes pertinent here. In the section mentioned earlier, labeling a country as a “safe third-country” allows the EU’s migration policies to send or push asylum seekers and migrants back to other countries with the purpose of containing certain populations in specific regions with the use of non-entrée regimes. The change in Turkey’s legal framework on the way it addresses foreigners and international protection, particularly, its introduction of Temporary Protection Regulation in 2014, with its commitment of non-refoulement, allowed for the labeling of Turkey to seem as a “safe third-country.”

A More Formalized Regime for the Governance of Foreigners in Turkey

Temporary protection came into effect in Turkey in 2014 amid a very different political context to that of Europe in 2001. In the midst of the Syrian conflict and ongoing migration from the Middle East and North Africa region to Europe, two overarching processes took place that are relevant: the development and implementation of the EU- Turkey migration partnership, and subsequent development of laws and institutions concerning foreigners and international protection in Turkey.

Although temporary protection is not considered to be a sought-after model of protection by those work on human rights advocacy and legal protection for asylum seekers, Turkey has made it clear over the years that it will not lift its geographical limitation to the

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1951 Convention.174 _{With this in mind, and the signing of the recent EU-Turkey partnership,} which coincided with the resumed EU accession talks in 2012, Turkey’s legal landscape went through a series of structural changes and formalization. The most notable of these changes are the introduction of the 2013 Law on Foreigners and International Protection and the 2014 Temporary Protection Regulation into the Turkish domestic law, both of which suggest an attempt to align with EU migration policies. As explored at greater length in the previous chapter, the EU, in its migration management partnerships, has shifted the obligation for international protection to border countries, which, in turn, have developed relevant legal frameworks for non-citizens within their territories.

I argue that the EU-Turkey migration management partnership depicts a structured form of off-shore asylum processing. This partnership is reflective of the increasing trend towards non-entrée regimes which put into question the ways in which certain international legal obligations are circumvented, namely how the non-refoulement principle175 _{is adhered} to by way of shifting the responsibility to other countries.176 With this in mind, it is important to address the broader picture: the EU is engaged in migration management from afar that puts into question the boundaries of its geopolitical borders, and is thus engaged in forms of externalizing its own border. Against the backdrop of the EU’s externalization of its border and its migration management partnership with Turkey are very distinct changes and developments in Turkey’s legal landscape, namely, the ways in which the state governs citizens and non-citizens and the types of protection it is offering. In the EU-Turkey

174 _{Icduygu, Ahmet. 2015. “Syrian Refugees in Turkey: The Long Road Ahead.” Migration Policy Institute. 1-}

18: 12. Accessed December 10, 2015.

175 _{Although non-entrée regimes exist in various parts of the world, such as in Australia for example, for the}

purposes of this paper, I only examine the EU vis-à-vis its partnership with Turkey.

176 _{That is, if an individual never reaches EU territory but is intercepted and sent to another country, one that is}

deemed as a “safe-third country” then the obligation to respect non-refoulment falls with that third country. A controversial example of shifting the “burden” to other countries, and more specifically of non-assistance at sea, is the case of the 2011 “left-to-die boat” from Libya. For more information on this specific case, please see: Heller, Charles, Pezzani, Lorenzo, and Situ Research. 2012. Report on the Left-to-Die Boat. London: Forensic Architecture. http://www.forensic-architecture.org/wp-content/uploads/2014/05/FO- report.pdf. Accessed May 30, 2016.

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partnership we see the development of extra-territorial processing of asylum claims, which is relevant to the broader discussion of how citizens and non-citizens are categorized and dealt with on the ground in Turkey. Before the 2012 renewed accession talks and migration partnership, Turkey had hosted asylum seekers and migrants in its territory without a formal domestic legal framework.177 However, since the 2013 Law took effect in 2014, the ways in which individuals migrate within and into/out of Turkey has changed drastically as have the ways in which individuals are registered. Within this same vein, I argue that temporary protection mechanisms in Turkey can in fact be viewed as a more formalized governance regime of foreigners. In addition to providing a set of rights for non-citizens, the sets of laws and institutions that emerged recently, i.e. the 2013 Law on Foreigners and International Protection and the 2014 Temporary Protection Regulation, speak to a more formalized method in which foreigners and non-Turks themselves are governed.

Changes in the Legal Landscape and its Implications

The political context in which temporary protection emerged in Turkey differs significantly from that of Europe. Temporary protection developed at a time when estimates from both AFAD178 _{and UNHCR placed the number of Syrian asylum seekers in Turkey} between 700,000 and 900,000179 as well as renewed EU accession talks and a burgeoning EU migration management partnership.

There are vast implications of formalizing a regime that governs rights, protection and membership of foreigners or non-citizens/non-Turks in the case of Turkey. Before 2014, Turkey had a type of temporary protection mechanism in place during the mid 1990s when it

177 _{Soykan, Cavidan. 2012. “The New Draft Law on Foreigners and International Protection in Turkey.” Oxford}

Monitor of Forced Migration.2 no. 2. 38-47:40 Accessed May 5, 2017.

178 _{AFAD: The Republic of Turkey Prime Ministry Disaster and Emergency Management Presidency} 179 _{For more on those estimates, see: Icduygu (2015); UNHCR (2014); Kirisci (2014).}

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established the 1994 Regulation. 180 _{However, the previous protection mechanism was} considered to be more of a secondary form of legislation that regulated protection and resulted in an uneven or inconsistent implementation of protection at varying levels within the territory, i.e. practices differed within cities as the rules were understood as “non- binding.” 181 _{As a result, the 2013 Law on Foreigners and International Protection is} considered to be the first domestic law in Turkey that regulates practices of asylum and protection.182 This is an important point to consider as it speaks to a formalization of how non-citizens are addressed and governed by the state. Stemming from the introduction of the of the 2013 Law, there have been many changes to the previous laws that addressed entry and exit, namely, the abolishing of the Law on Sojourn and Movement of Foreigners in Turkey No. 5683/1950 and the now mainly inactive Passport Law No. 5682/1950.183

The 2013 Law is seen as providing a more comprehensive approach to issues that Turkey has faced in the past with regards to irregular migration, presence of foreigners and the need for protection and asylum for those who do not qualify under Turkey’s geographic limitation to the 1951 Convention. The 2013 Law is divided into five parts: Part One on the

Purpose, Scope, Definitions, and Non-Refoulement, Part Two addresses Foreigners, and

more specifically entry, exit, residency, stateless persons and removal, Part Three addresses

International Protection, Part Four is comprised of the Common Provision Regarding Foreigners and International Protection, and lastly, Part Five addresses the Directorate General of Migration Management.

The following sets of excerpts are from the 2013 Law on Foreigners and International Protection No. 6458, of which Article 91 specifically addresses and regulates Temporary

180_{Regulation No. 1994/6169 on the Procedures and Principles related to Possible Population Movements and}

Aliens Arriving in Turkey either as Individuals or in Groups Wishing to Seek Asylum either from Turkey or Requesting Residence Permission in order to Seek Asylum From Another Country. For more on the specific Regulation, see http://www.refworld.org/docid/49746cc62.html

181_{Soykan 2012, 41} 182_Ibid.

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Protection as well as the 2014 Temporary Protection Regulation (Resolution No. 29153) which provides additional changes and information to the temporary protection outlined in Law No. 6458. Additionally, I outline the relevant Articles within the 2014 Temporary Protection Regulation that speak directly to the development of an institutional structure to address the new mechanisms.184 Through an analysis of certain aspects of this new law, it is possible to gage how, legally and on paper, the formalization process that is underway in Turkey to deal with non-citizens in its territory.

These excerpts and sections help to lay the foundation of both the Law and of the Regulation which help to provide a base with which to discuss the implications of the restructuring of how migration and foreigners, i.e. non-citizens are situated in the country and of the shifting of the legal landscape to reflect more formalized methods of governing and regulating foreigners.

Each section points to relevant descriptions or articles within the Law and the Regulation with regards to the creation of the Ministry of Interior Directorate General of Migration Management, the role and duties of the Council of Ministers in terms of decision- making and consequently, the interpretation of the law, and more specific aspects of the articles addressing temporary protection and foreigners. The excerpts also highlight the all- encompassing nature of the law in its dealing with foreigners as a category; from regulating entry and exit, to residency, to protection, the law organizes foreigners into distinct categories that revolve around their presence in Turkey, while at the same time, it does so through one overarching form of Law; a law that addresses foreigners in its entirety. The wide-reaching implications of these excerpts are explored at greater length in the third section of this chapter.

184_{For the purposes of this research, the English version of both the 2013 Law and the Changes Provided by}

Temporary Protection Regulation document issued by the Directorate General of Migration Management are quoted and were cross-checked with the Turkish version. The original Turkish version of the Temporary Protection Regulation was used in this analysis and in deciphering of the articles within the Regulation.

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Content of the Law:

2013 Law on Foreigners and International Protection No. 6458

The Ministry of Interior Directorate General of Migration Management has provided a PDF document185 of the Law on Foreigners and International Protection, organized into the five parts that were briefly outlined above and which are explored further on, it outlines the content and purpose of the articles. As a Note on Usage, it also states however, that:

This is the unofficial translation of “Law of Foreigners and International Protection.” This translation does not have legal bindingness. It is not used as an official document in any official and private corporations and institutions and